Conflictoflaws

It does not happen often that the Grand Chamber of the Court of Justice delivers a judgment on interpretation of EU private international law instruments. In fact, as the highly interesting study of Martina Mantovani on EAPIL blog shows, this field of EU law is characterized by a relatively low number of Grand Chamber cases – less than one per year.

The case Senatsverwaltung für Inneres und Sport, C-646/20 is one of the rare occurrences where the Court decided to have recourse to that option. It did so in order to clarify whether an extrajudicial act on divorce can constitute a ‘judgment’ under the Brussels II bis Regulation and enjoy automatic recognition.

 

Context of the request for a preliminary ruling and the legal issue at hand

The situation that led to the case being brought before the Court can be summarized as follows:

A German authority is faced with a request to enter an Italian extrajudicial act on divorce in the register of marriages. The authority considers that the act should be subject to the recognition procedure and rejects the request. The case is brought before the national courts.

Ultimately, the German Federal Court brings its request for a preliminary ruling before the Court asking, in essence, whether that ‘act’ has to be considered as a ‘judgment’ within the meaning of Article 2(4) of the Brussels II bis Regulation and, thus, be automatically recognized in Germany.

In the preliminary questions themselves, the referring court does not describe the modalities of such an ‘extrajudicial’ act. In the wording of those questions, the referring court confines itself to mentioning the provisions of Italian law providing for a divorce by mutual consent and explains those modalities in its request for a preliminary ruling.

Back in May, AG Collins presented his Opinion in that case, proposing to the Court to answer the preliminary questions in a following manner:

‘The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of [the Regulation].’

 

Court’s findings

At the outset, the Courts affirms that the notion of ‘judgment’ within the meaning of Article 2(4) of the Brussels II Regulation has to be given an autonomous meaning (para. 41).

It turns next to the primary law (Articles 67 and 81 TFEU) to observe that, in order to establish the area of freedom, security and justice, the EU develops the judicial cooperation in civil matters having cross-border implications and, doing so, it ensures the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases (para. 42).

Interestingly, from the methodological standpoint, the Court has already relied on primary law to interpret the Brussels II bis Regulation and decide on its scope in its judgment in in UD, C-393/18 PPU, para. 38. While the judgment at hand echoes that approach, it also takes it further. The Treaty provides that the EU ‘shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases’, yet the Court states that the EU the ensures, when necessary (and, as we learn from subsequent paragraphs of the judgment – it does so through the Brussels II bis Regulation) the recognition and enforcement of extrajudicial decisions.

It is only then that the Court mentions other provisions of the Regulation in order to find, in essence, that the notion of ‘judgment’ shall receive a broad understating, including the decisions adopted extra-judicially. Doing so, the Court invokes, in particular, Article 2(1) of the Brussels II bis Regulation according to which the notion of ‘court’ shall cover all the authorities in the Member States with jurisdiction in the matters falling within the scope of this Regulation (paras. 44 et seq.).

The Court attempts next to benchmark that finding against its previous judgment in Sahyouni, C 372/16. In this regard, it notes that in order to deliver a ‘judgment’, the authority must retain control of the pronouncement of the divorce. In the context of decisions on divorce by mutual consent, such control has to involve the examination as to whether the conditions for divorce provided for in the national law has been met and the consent of the spouses has been real and valid (para. 54).

Those findings lead to Court to the conclusion that an a divorce decree drawn up by the civil registrar of a Member State, containing a divorce agreement concluded by the spouses and confirmed by them before that registrar in accordance with the conditions laid down by the legislation of that Member State, constitutes a ‘judgment’ within the meaning of the Brussels IIa Regulation (para. 67).

 

The judgment can be found here (in French, no English version at the time of posting), accompanied by a press release (in English).

Written by Martina Ticic, University of Rijeka, Faculty of Law; Croatian Science Foundation (HRZZ) doctoral student

For anyone interested in the area of private international law, the Hague Academy of International Law and its Summer Courses on Private International Law have been one of the must-do’s ever since the Academy opened its doors in 1923. Each year, hundreds of students, academics and practitioners attend the courses given by renowned lecturers, while the Academy also offers multiple social and embassy visits, an access to the famous Peace Palace Library, as well as ample opportunities for discussion between the attendees who all come from different backgrounds. It seems that this report comes in quite timely as the programme for the 2023 Summer Course has just been announced.

The 2022 edition once again proved the immense value that the Summer Courses offer. From 1 to 19 August, the Academy hosted the attendees of over 60 different nationalities, providing them with lectures and seminars on various relevant topics, some time for research and visits to many of the Hague’s international organisations, but also an opportunity for exchange of ideas, networking and creating friendships. As such, the Academy was truly a place to be this summer for everyone wanting to learn more on the matters of private international law, as well as to connect with others who share the same or similar interests.

After the welcome speech by prof. Jean-Marc Thouvenin, Secretary-General of the Academy, this year’s inaugural lecture was given by Dominique Hascher, judge at the Supreme Judicial Court of France. Judge Hascher opened the Summer Courses with the lecture on ‘The Role of International Law in the Review of Awards’.

The General Course was given by Louis d’Avout, a professor of private international law at the Université Paris II Panthéon-Assas. Titled ‘Towards Worldwide Law Consistency’, the course provided the attendees with an overview of the core idea on which the discipline of conflict of laws was built upon: the coherence of rules of individual conduct on the global level. By analysing the sole definition of private international law, coordination mechanisms, the concept of legal relativity, connecting rules and factors, transnational cooperation and vertical disciplines in the regional context, prof. d’Avout offered a holistic view on the discipline of private international law itself, making the course a necessity for anyone wishing to excel in this area of law, either as a practitioner or as an academic. Through his lecture, prof. d’Avout invited all of the participants, particularly the younger generation of lawyers, to work towards the global coherence of law, as the desirable state of the system of law in general is that of a ‘social construction’ which guarantees predictability and security for its subjects that are faced with various sources of law and modes of conflict resolution. The course lasted for two weeks, which meant that there was plenty of time for participants to acquaint themselves with the matter at hand. Two of the seminars on the chosen topics were also held in the course of the two weeks.

Prof. Arnaud Nuyts, from the Université Libre de Bruxelles, held a Special Course on ‘The Forum for Cyber-Torts’, which is an excellent topic in today’s day and age. He highlighted the diversity of civil cyber-torts, as well as the challenges of locating the torts that are committed on-line. The course also touched particularly upon European legal framework and the guiding principles of its case law, while also analysing the ‘trichotomy’ of the forum for cyber-torts: the forum for the place of the causal event, the forum for the place of accessibility of the website and the forum for the centre of interests of the victim.

Prof. Ulla Liukkunen, from the University of Helsinki, presented her Special Course on ‘Mandatory Rules in International Labour Law’, another important topic considering the rising number of cross-border workers. As labour law is often connected to domestic rules, it is interesting to observe more closely the relationship between labour law and private international law. Throughout the course, the special nature of cross-border employment was acknowledged and the participants were acquainted with the concepts of triangular contracts, weaker-party protection, International Labour Organisation, the ‘decent work’ objective, etc. Prof. Liukkunen particularly highlighted the pluralism of regulatory sources in international labour law, and pointed to the fact that labour rights-based approach to decent work in developing regulatory private international law would advance the necessary protection for workers and ensure decent work for all.

Prof. Tiong Min Yeo, from the Singapore Management University, held a Special Course titled ‘Common Law, Equity, and Statute: Effect of Juridical Sources on Choice of Law Methodology’. The course offered insight into the topic of choice of law methodology and the analysis that must be done in order to select the applicable law rules. It presented three juridical sources in hierarchy: statute, equity and common law. The analysis of various case law served to explain the effects that these sources have on the choice of law methodology.

Prof. Kermit Roosevelt III, from the University of Pennsylvania Carey Law School, presented the topic of ‘The Third Restatement of Conflict of Laws’. Throughout this Special Course, the history of American choice of law was examined so as to better understand the context of the Third Restatement of Conflict of Laws, a current project of the American Law Institute. From the beginnings of American choice of law characterised by territorialist approach in the First Restatement and the Second Restatement as a ‘transitional document’, to the goals and framework of the Third Restatement, the course portrayed the full picture of the American choice of law rules. One of the core ideas that prof. Roosevelt developed throughout the course is that there are two different sets of values that a choice of law system should promote: so-called ‘right answer’ values and ‘systemic’ values. While the former one relates to selecting the law of the state with the best claim to regulatory authority, the latter relates to the certainty, predictability, uniformity and ease of application of the system.

Prof. João Bosco Lee, from the Universidade Positivo Brazil, presented an arbitration-related topic titled ‘The Application of International Conventions by Arbitrators in International Trade Disputes’. On the one hand, this Special Course examined the application of international conventions pertaining to the law applicable to the merits of the dispute in international commercial arbitration, either according to the choice of the parties or by the effect of determination of the lex cause by the arbitrator(s). On the other hand, the participants got the chance to study the cases in which international conventions could intervene in the resolution of international commercial arbitration without being the applicable law on the merits.

Prof. Marco Frigessi di Rattalma, from the Brescia University, held a Special Course on the ‘New Trends in the Private International Law of Insurance Contracts’. By focusing on the specific cases that emerged in the recent years in the field of private insurance, the attendees of the course were immersed in diversity of topics relating to jurisdiction and applicable law in the matters of insurance contracts, the specific types of insurance contracts, compulsory insurance against civil liability in respect of the use of motor vehicles, as well as the impact of fundamental rights on such matters. Prof. Frigessi di Rattalma posed various important questions during his analysis of the relevant issues, e.g. what can characterise as an insurance contract; whether EU law may permit derogation from the equal treatment of men and women provided by insurance contracts in accordance with the applicable national law to persist indefinitely; what exactly falls under the notion of ‘use of vehicles’ in regards to Directive 2009/103 on the insurance against civil liability in respect of the use of motor vehicles; etc.

Additionally, special lectures were given in tribute to the late Professor Emmanuel Gaillard who was originally meant to hold the General Course at the 2022 Summer Courses. These lectures were held by Yas Banifatemi, Diego P. Fernandez Arroyo, Dominique Hascher, Horatia Muir Watt and Luca Radicati di Brozolo respectively, each of them focusing on a particular issue related to arbitration, the topic most dear to prof. Gaillard, as well as familiarising the attendees with the persona of Emmanuel Gaillard.

In the afternoons, participants could attend seminars and some of the lectures on specific topics which were organised each week, e.g. Lecture on the Permanent Court of Arbitration by Brooks Daly, Lecture on the use of the Library by Candice Alihusain, Lecture on the International Court of Justice by Florence Zaoui, Lecture on ‘Fighting Human Trafficking: the Dutch Approach’ by Warner ten Kate, Lecture on the Hague Conference on Private International Law by Philippe Lortie, and ‘International Commercial Arbitration: the Role of Private International Law in the Lifespan of an Arbitral Procedure’ by Gerard Meijer and Camilla Perera-de Wit. For those eager to learn more, two extra short courses were held in addition: one on the law of the European Union held in the span of the first week and given by dr. Thomas Vandamme, and the other on the matters of Comparative Law, held on Saturday of the first week and given by dr. Brooke Marshall.

The participants were also given an opportunity of visiting some of the international organisations that are stationed in the Hague. For this year’s session, the Academy planned visits to the Hague Conference on Private International Law, the International Criminal Court, the Kosovo Specialist Chambers, the Organisation for the Prohibition of Chemical Weapons and the Residual Special Court for Sierra Leone. By visiting various organisations that deal with such variety of matters, the attendees got a truly immersive experience. Besides the international organisations, visits to multiple embassies were organised, so the participants also got the feel of diplomacy. Various other activities were also held, e.g. a reception at the City Hall, Beach Party, Grotius Peace Palace Library Tour and a visit of the extraordinary Peace Palace itself.

During the Courses, the most advanced attendees had the opportunity to attend the Directed Studies sessions which delved deep into many intricate questions of private international law. An even smaller fraction of those students in the end got the chance to participate in the prestigious Diploma Exam of the Academy. In this year’s Private International Law session, one Diploma by the Academy was awarded to Ms. Madeleine Elisabeth Petersen Weiner.

As it is obvious from the overview presented above, the 2022 Summer Courses on Private International Law were, as always, a huge success. Over 200 participants from all over the world and from various professional backgrounds got the experience of a lifetime thanks to the Academy, its Summer Courses and all the additional benefits that come with it. For anyone still doubting whether the Summer Courses, or perhaps the newer addition of the Winter Courses, are worth to attend, this post can serve as a clear answer and affirmative one at that.

The programme of the Hague Academy of International Law Summer Course in Private International Law for the next year has been recently announced along with the invitation for applicants.

Inaugural lecture on Women’s Rights in a World in Transition: The Challenges of Private International Law will be delivered by Maarit Jänterä-Jareborg, Uppsala University, whereas the general course on Legally Fragmented World: A Private Law Perspective is entrusted to Francisco Garcimartín, Autonomous University of Madrid.

The special courses are:
Olivera Boskovic, Université Paris Cité, Tortious Liability in Contemporary Private International Law
Matthias Lehmann, University of Vienna, Crypto Economy and International Law
Pedro J. Martinez-Fraga, New York University – School of Law, Evidence-Gathering, Transparency, and Risk Assessment in International Commercial Arbitration
Anselmo Reyes, Singapore International Commercial Court, The Use of Domestic Law to Regulate the Conduct of Individuals, Corporations and Governments Extra-Territorially
Geneviève Saumier, McGill University, Specialised National Courts and International Business Disputes
Maja Stanivukovic, University of Novi Sad, Property Rights of Individuals After Changes of Territorial Sovereignty.

The directors of studies for the English-speaking section are: Philippa Webb, King’s College London, and Verónica Ruiz Abou-Nigm, University of Edinburgh. The directors of studies for the French-speaking session are: Lucie Delabie, Université de Picardie Jules Verne, and Malik Laazouzi, Université Paris 2 – Panthéon-Assas.

All wishing to apply for the course are requested to register online between 1 November 2022 and 31 January 2023. Importantly, scholarships are available for a limited number of successful applicants.

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the V Workshop Jean Monnet Network on “Private International Law in relations between the European Union and Latin America”, which will be held in hybrid format on April, 19th 2023, hosted by the Universidad de Sevilla, Spain.

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by March, 24th 2023 to the email: network@eurolatinstudies.com.

More information here.

On 2 December 2022, from 4 pm to 5.30 pm (MET), the European Association of Private International Law (EAPIL) will hold a joint Seminar with the British Institute of International and Comparative Law (BIICL). The Seminar will focus on the review of the Rome II Regulation and will, in this context, shed light on the Study that was prepared in 2021 by BIICL and Civic Consulting to support the preparation of the Commission report on the Regulation’s application. The seminar will focus on general issues as well as a selection of specific subjects.

 

Programme

4.00 pm: Introduction – Overview of the Study

       Constance Bonzé, BIICL (UK) and Eva Lein, BIICL (UK)/University of Lausanne (Switzerland)

4.15 pm: Focus I – Financial Loss

       Xandra Kramer, University of Rotterdam (Netherlands)

4.25 pm: Focus II – Artificial Intelligence

       Martin Ebers, University of Tartu (Estonia)

4.35 pm: A View from Practice

       Marie Louise Kinsler, KC, 2 Temple Gardens, London (UK)

4.45 pm: Discussion

 

Participation and Registration

The Seminar will take place via Zoom. Registration is possible via this link. Registered participants will receive all necessary information one day prior to the event (i.e. on 1 December 2022).

 

Background

The EAPIL (Virtual) Seminar Series wishes to contribute to the study and development of (European) Private International Law through English-language seminars on topical issues. It will provide an easily accessible and informal platform for the exchange of ideas – outside the bi-annual EAPIL conferences. At the same time, it will serve as a means for EAPIL members to connect with other EAPIL members and non-members.

 

About the Book

 Streamlining disputes has become imperative to reduce the judicial caseload. One may presume that resorting to arbitration or other forms of ADR when the parties wish to resolve their issues amicably might provide them with a speedier remedy. Considering that commercial disputes now are extensively complex and cumbersome, there arose a need for a more evolved dispute resolution mechanism that could cater to the needs of each contract or dispute in a customised manner. MTDR can aid in doing so. It entails successfully employing different kinds of ADR for the same dispute in case there is no resolution. However, MTDR comes with its fair share of issues, such as reservations amongst the parties, lack of rules governing such procedures, limitation period, lack of party cooperation and the non-binding nature of certain forms of ADR. These pertinent questions are merely the tip of the iceberg when it comes to Multi-Tiered Dispute Resolution. The objectives of Alternative Dispute Resolution are saving time and reducing costs. At the end of the day, it is imperative to answer whether Multi-Tier Dispute Resolution is viable in achieving these objectives or if it will manifold the complexities involved in the process. Yet if there is even a possibility of settling disputes or at least parts of the dispute amicably, this concept is worth a chance. Despite the United Nations’ endeavours to promote uniform interpretations of the arbitration law worldwide, several nations have taken varying stands on the enforceability of certain dispute resolution procedures, calling for a study of the varying standards in different jurisdictions. For any dispute resolution mechanism to be effective, the codified law and the jurisprudence of a particular state need to be conducive to enforcing the process adopted by the parties. Thus, in-depth analysis and critical review of this subject’s laws and judicial pronouncements have been demonstrated. This book aims to assist the reader in overcoming the issues that one might face with MTDR in a wide range of jurisdictions to make this process of dispute resolution useful, effective and fruitful. The book covers MTDR in different jurisdictions like the UK, USA, France, Canada, Australia, Singapore, Germany, Hong Kong, China, Taiwan and India. The functionality of any reform, particularly one that seeks to provide a multi-faceted solution, predominantly lies in the academic enrichment of the same. Policy and academia can only strengthen public awareness of Multi-Tier Dispute Resolution.

 

The Book is available for purchase on the Bloomsbury website using this link.

About the Author

Anjali is an Assistant Professor at Jindal Global Law School, O.P. Jindal Global University. Anjali holds an LL.M. in International Commercial Arbitration Law from Stockholm University (SU); and B.A. LL.B. (Hons.) degree from Jindal Global Law School, O.P. Jindal Global University, Sonipat (India). She is also a qualified lawyer at the Bar Council of India. She has also been advising domestic and international clients regarding commercial and civil disputes. Anjali is also acting as a Dispute Resolver (Mediator/Arbitrator/Conciliator) for various ODR platforms. Anjali sits on the Editorial Board of Legal Maxim and the Review Board of Syin & Sern. 

 

The first meeting of the Special Commission to review the practical operation of the HCCH 2000 Protection of Adults Convention will be held today in The Hague and will last until 11 November 2022. This event is remarkable given that this is the first time that the practical operation of this Convention is assessed since its entry into force on 1 January 2009.

A few topics of the agenda are worthy of note. I would like to highlight two:

The first topic deals with the tools to assist with the implementation of the 2000 Convention and is broken down as follows:

• Improving accessibility to the existing model forms
• Direct judicial communications and a possible network of judges under the 2000 Protection of Adults Convention. See here.
• Finalisation and adoption of the Practical Handbook on the Operation of the 2000 Protection of Adults Convention
• Finalisation and adoption of the Implementation Checklist under the 2000 Protection of Adults Convention
• Finalisation and adoption of the 2000 Protection of Adults Convention Country Profile

The second topic and undoubtedly fascinating to any international lawyer – if only with regard to treaty law – is the agenda item: Possible amendments to the 2000 Convention. For more information, click here. This agenda item contains the following sub-items:

• Interest in deleting the terms “guardianship” and “curatorship” (Art. 3(c))
• Interest in adding a new conflict rule for “ex lege representation”
• Interest in adding a provision on “instructions given and wishes made by the adult e.g. advance directives”
• Interest in adding final clauses allowing Regional Economic Integration Organisation to join the 2000 Convention
• Possible mechanisms to amend the 2000 Convention

Event date: 17 November 2022 Event time: 12:00 – 13:30 Oxford week: MT 6 Audience: Members of the University Venue: St Catherine’s College (Room: TBA) Speaker(s): Dr Jeanne Huang (Associate Professor, The University of Sydney)

On January 24, 2022, the Supreme People’s Court of China issued the Minutes of the National Court’s Symposium on Foreign-Related Commercial and Maritime Trials (“Minutes”), which provide rules for judgment recognition and enforcement (“JRE”) in China when no treaty exists between China and the state of origin or the treaty does not address a particular JRE issue. Later in the year, on August 29, 2022, the European Union and its member states acceded to the 2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The Convention will enter into force in September 2023. Given that China has not signed the Convention, this talk aims to help international business actors to plan for the ways in which JRE in China will differ and understand the prospects for China to ratify the Convention.

Dr Huang’s talk and discussion will be followed by a light sandwich lunch. Please email conflictoflaws@law.ox.ac.uk to register your attendance and any dietary requirements.

For more information see here

This event is generously supported by Twenty Essex

by Ilaria Pretelli 

On Friday October 21 the Comité français de droit international privé held a special session devoted to the last and possibly final version of the project of code of private international law. As such, the project consists of 207 articles divided into 6 books: general rules, special rules, procedure, recognition and enforcement of foreign acts and judgments, provisional and protective measures, transitional provisions.

The session was held “à huis clos” with the discussion among members stimulated by foreign guests specially invited to have a perspective from abroad. Not surprisingly, due weight was given to Switzerland and Belgium, as the former is considered to have a model legislation on the discipline and the latter has the “youngest” statute of continental Europe. Marc Fallon underlined the very different circumstances in which the Belgian legislation was constructed, since it came from a private initiative of Belgian academics, only at a later stage submitted to the Belgian legislator. The opposite path has led to the drafting of the French project, which stems directly from an initiative of the Ministry of Justice. In France, this project is the fourth in time after those by Niboyet (1950), Batiffol (1959) and Foyer (1967). If successful, it will bring to an end the essentially doctrinal and jurisprudential character of French private international law. These traditional characteristics of French private international law were recalled by Pierre Mayer in an already nostalgic note. Andrea Bonomi offered both a Swiss and European perspective, with laudatory remarks on the main innovations of the project: the codification of rules on procedure and on procedural measures, and the codification of the “méthode de la reconnaissance”. Reference is thereby made to the renowned French theory which has developed Picone’s observations on the opportunity of recognising the competence of a legal order (l’ordinamento competente) as a whole to decide a cross-border issue, instead of applying such a foreign order’s rules to decide the same cross-border issue within the forum. This method (or methods, according to subsequent works of the author of the theory, Pierre Mayer), is gaining importance in contemporary practice. On the one hand, the increasing mobility of citizens raises the number of conflicts of laws and creates an appetite for hard and fast solutions. A method allowing to displace the discussion from substance to competence of the authority serves this need. In addition, it is particularly welcome in the EU, where it is coherent with the prevalence of the evaluations of the “country of origin”.

Other rules applauded by the audience were those on public policy and fraude à la loi, although regret was expressed over the fact that these well-known denominations are not mentioned in the corresponding rules (Articles 11 and 12). The rule on public policy is among the many of the project that reveals a constant attention by the drafters to coordinate national rules with the European ones: it explicitly grants a role to the “European notion of public policy”.

Possibly the most controversial rules are those on filiation resulting from IVF with a donor and on surrogacy (Articles 62 and 63). In this respect, the project breaks with French precedent and adopts a solution based on the respect of the legitimate expectations of donors, intended parents and the gestational mother: the lex loci actus.

According to the drafters, legal certainty for all parties involved points to the application of the law of the country in which assisted reproductive technology (ART) was performed or surrogacy was agreed by contract and implemented. These rules represent an exception to the general ones (Article 59), which point to the law of the child’s citizenship at the moment of birth. Article 62 seems to be of limited utility, since it merely confirms that French clinics need to follow French law and vice versa. However, as regards the filiation of children born with the employment of a donor by means of an IVF performed in a foreign fertility clinics, the applicable law will dependt on the place of birth. The presumptions of paternity of French domestic law will apply in the first place. The scope of application of the foreign law of the country in which the clinic is based will thus be limited to the aspects related to the right of the child to have access to information regarding the donor. In addition, the lex loci actus would open the French border to reproductive tourism and, in so doing, would create the conditions to prevent the need of further strategic litigation before the ECHR in order to decriminalise surrogacy. Some critical voices have observed that the present domestic and international context are too fragile for such a solution to be welcome. The inherent risk is that the advancement in a wider recognition of “a right to parenthood”, including “parenthood for all” may increase existing divisions and undermine the credibility of the universal character of the principle of non-discrimination.

Divisions also exist as regards the timeliness of the code. Paul Lagarde raised his authoritative voice, in the columns of the last issue of the Revue critique, against the very idea of devoting energies to a national code of private international law. The engagement for the French code reveals, he argued, the availability of resources that could have been better employed to contribute to the drafting of a comprehensive code of European private international law based on the numerous existing regulations.

The four panels of the debate allowed a comprehensive analysis:

1. structure of the code, articulation of sources, general rules of choice of law (chaired by Marie-Laure Niboyet)
2. Procedure, Effect of foreign judgments and public acts (chaired by Jean-Pierre Rémery)
3. Roundtable on family law
4. Ccompany law – collective labor law ( chaired by Etienne Pataut).

All distinguished participants engaged in the rich and deep discussion triggered by the analysis of the project are looking forward to future arenas where the debate can continue.

In the context of the Vici project ‘Affordable Access to Justice’ conducted by the Erasmus School of Law (Rotterdam) and financed by the Dutch Research Council – NWO, the project team is organizing a seminar titled ‘Third-Party Funding: Trends, Developments, and the Future’ (online).

The seminar is scheduled for Wednesday, 7 December 2022 (10:00-12:15 CET) and it will feature presentations by: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, Netherlands), Stefaan Voet (KU Leuven, Belgium), Masood Ahmed (University of Leicester, UK), Adrian Cordina (Erasmus University Rotterdam, Netherlands), Michael Legg (UNSW Sydney, Australia), David Capper (Queen’s University Belfast, UK).

The complete program and information for the online registration are available here.

For updated information on the project, you may follow the Project’s LinkedIn page.

Written by Mark Weidemaier, the Ralph M. Stockton, Jr. Distinguished Professor at the University of North Carolina School of Law, and Mitu Gulati, the Perre Bowen Professor of Law at the University of Virginia School of Law.

Governments with no realistic prospect of paying their debts often gamble for redemption, trying desperately to avoid default. Political leaders, with good reason, fear that a debt default will get them thrown out of office. But in trying to hold power, sometimes by borrowing even more, they often make matters worse for the country and its people. A prime example involves the collateralized bonds issued by Venezuelan state oil company, PDVSA.

Venezuela’s Gamble

In 2016, PDVSA was about to default on its debt, as was the Venezuelan state itself. At that stage, it was already well beyond the point where the debt should have been restructured, given worsening domestic conditions. Instead, the Maduro government gambled. It conducted a debt swap in which investors exchanged unsecured PDVSA bonds for new ones due in 2020. To sweeten the deal, the PDVSA 2020s were backed by collateral in the form of a 50.1% interest in CITGO Holding, the parent company of U.S. oil refiner CITGO Petroleum. The deal bought a few extra years but put at risk the country’s primary asset in the United States.

Even at the time, it was uncertain whether Venezuelan law authorized the transaction. The Venezuelan Constitution requires legislative approval for contracts in the national public interest. Maduro did not seek approval because opposition lawmakers controlled the National Assembly and had made clear they would not grant it. The deal went ahead anyway.

Times have changed. The United States recognizes Juan Guaidó as Venezuela’s interim president (for now). The PDVSA 2020 bonds are in default. The bondholders want their collateral. PDVSA has challenged the validity of the bonds. But the bonds include a choice-of-law clause designating the law of New York. Does this mean that validity is to be determined under New York law? John Coyle recently wrote a terrific post about the case and its significance on this blog. We write to provide some broader context, drawing from our article, Unlawfully Issued Sovereign Debt.

Sovereign Debt and Choice-of-Law Clauses

The story of the PDVSA 2020 bonds is a common one in government debt markets. A government borrows money in dodgy ways or at a time of financial distress. Arguably, the debt contravenes domestic law, although the government may obtain legal opinions affirming its validity. The debt also includes a choice of law clause providing for the application of foreign law, typically that of New York or England. Later, a new government comes to power and disputes the validity of the debt. We have seen this pattern in Venezuela, Mozambique, Ukraine, Zambia, Liberia, Puerto Rico, and in other sovereign and sub-sovereign borrowers. (The pattern goes back even further – for a delightful treatment of the hundreds of such cases from the 1800s involving municipal debt, see here).

These cases raise what seems like a simple question: Does an international bond—i.e., one expressly made subject to foreign law—protect investors against the risk that the bond will later be deemed in violation of the issuer’s domestic law? Despite seeming simple, and how frequently the question arises, there is little clarity about the answer. New York law governs a big part of the sovereign debt markets, and the choice-of-law question in the PDVSA 2020 case has been certified to the New York Court of Appeals. Will that court’s decision offer clarity?

Variations in Clause Language

Count us skeptical. The problem is not just the unpredictability of choice of law rules. It is that many choice-of-law clauses are drafted in perplexing ways, which leave unclear the extent of protection they offer to investors. Consider three examples. The first is from the PDVSA 2020 bond itself where the relevant language is capitalized (as if capitalization has some magic effect):

THIS INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS INDENTURE AND THE NOTES AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY WHATSOEVER TO THIS INDENTURE AND THE NOTES (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)

This clause apparently seeks to extend New York law to the widest possible range of questions. Whether that includes the question of whether the bonds were validly issued is, as John’s post puts it, the “billion-dollar question.” And the answer is not clear. The decision by the New York Court of Appeals might provide some clarity on it . . . maybe.

But now consider this clause, from a Brazilian bond (emphasis ours):

The indenture and the debt securities will be governed by, and interpreted in accordance with, the laws of the State of New York without regard to those principles of conflicts of laws that would require the application of the laws of a jurisdiction other than the State of New York . . .; provided, further, that the laws of Brazil will govern all matters governing authorization and execution of the indenture and the debt securities by Brazil.

Does the bold text mean that investors cannot enforce a loan issued in violation of Brazilian law? We aren’t sure. As we discuss in the paper, it can be hard to identify questions of “authorization” and “execution,” especially in the context of sovereign borrowing. Consider the question whether a loan violates a constitutional or statutory debt limit. Does the debt limit negate the sovereign’s capacity to borrow, limit the authority of government officials to bind the sovereign, or make the loan illegal or contrary to policy? How one categorizes the issue will affect the answer to the choice-of-law question. Carve outs like this—which reserve questions of authorization and execution for resolution under local law—appear in around half the New York-law sovereign bonds we examined.

Finally, consider this clause from a Turkish bond (again, emphasis ours):

[The] securities will be governed by and interpreted in accordance with the laws of the State of New York, except with respect to the authorization and execution of the debt securities on behalf of Turkey and any other matters required to be governed by the laws of Turkey, which will be governed by the laws of Turkey

What now? This “other matters” carve out is even odder than the one for questions of authorization and execution. It hints that additional, unspecified matters might be governed by the sovereign’s local law. Indeed, it implies that the sovereign’s own law might determine which issues fall within the “other matters” exception. If so, the clause potentially allows the government to create new exceptions to the governing law clause.

Conclusion

Our discussions with senior sovereign debt lawyers have done little to dispel our uncertainty about the meaning of these clauses. They seem just as confused as we are. All we can say with confidence is that many choice of law clauses include traps for unwary investors. Until drafting practices converge on a consistent and coherent model, the choice-of-law question is likely to remain fodder for litigation.

[This post is cross-posted at Transnational Litigation Blog.]

A series of webinars will be held every Thursday in November 2022 at 5 pm (Argentina time, 9 pm CET time) in Spanish. The topics range from international family law to environmental justice to the consequences of the conflict in Ukraine for Private International Law.

Registration is free of charge. To register, click here.

The program is available below:

 

CALL FOR PAPERS

The International Society of Family Law is holding its 18th (Golden Jubilee) World Conference in Antwerp on 12-15 July 2023. The topic is “Rethinking Law’s Families & Family Law?”

The call for papers is now open. Interested persons are invited to submit abstracts for individual presentations or collective panels by 16 November 2022  by email to conveners@isfl2023.org.

Among other themes, panels may cover legal aspects of reproduction, (minor and adult) siblings, migration, and juvenile law. These of course also include matters of private international law.

The conference will be on-site in Antwerp and in English; proposals for limited French or Dutch panels are also welcome.

More information is available on the website of the University of Antwerp.

Conventions & Instruments

On 1 October 2022, the 2007 Child Support Convention entered into force for the Philippines. At present, 44 States and the European Union are bound by the Convention. More information is available here.

On 4 October 2022, Cabo Verde deposited its instrument of accession to the 1980 Child Abduction Convention and 1996 Child Protection Convention. With the accession of Cabo Verde, the Child Abduction Convention now has 102 Contracting Parties. It will enter into force for Cabo Verde on 1 January 2023. For the Child Protection Convention, with the accession of Cabo Verde it now has 54 Contracting Parties. The Convention will enter into force for Cabo Verde on 1 August 2023. More information is available here.

 

Meetings & Events

From 18 to 20 October 2022, HCCH Asia Pacific Week was held in Manila in hybrid format. The conference provided the opportunity for the exchange of ideas and viewpoints from across Asia and the Pacific on some of the most prominent HCCH Conventions and instruments, as well as on the HCCH’s ongoing normative projects and possible future work, in the areas of transnational litigation and legal cooperation, international family and child protection law, and commercial, digital, and financial law. More information is available here.

From 17 to 21 October 2022, the Experts’ Group on Parentage / Surrogacy met for the twelfth time. The Group discussed the content of the final report that is to be presented to the Council on General Affairs and Policy at its 2023 meeting, in which the Group will present its assessment of the feasibility of one or more private international law instruments on legal parentage. More information is available here.

 

Upcoming Events

To celebrate the tenth anniversary of the HCCH Regional Office for Asia and the Pacific, a workshop on the HCCH Conventions in the area of transnational litigation in civil or commercial matters will be held on 8 November, as part of Hong Kong Legal Week 2022. Participation is free of charge, although advance registration is required. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

On Wednesday, 16 November 2022, Professor Philippa Webb and Associate Professor Rishi Gulati will host a (hybrid) conference on “Accountability of Transnational ORgnisations” at King’s College London.

The conference will bring together academics, practitioners, and international organisation officials to discuss key developments around the legal accountability of transnational institutions.

The use of the term ‘transnational’ is deliberate. The aim is not just to consider accountability concerns relating to public international organisations (IOs), but also ones relevant to multinational corporations (MNCs) and non-governmental organisations (NGOs). The focus is on legal accountability, including the notion of access to justice for alleged victims of institutional conduct and due diligence obligations increasingly imposed on transnational institutions.

If interested, please register below:

https://www.eventbrite.co.uk/e/accountability-of-transnational-organisations-conference-tickets-441537238767?aff=ebdssbdestsearch

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

U. Janzen/R. Wagner: The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

 

R. Magnus: A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

 

H.-P. Mansel: Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

 

B. Laukemann: Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

 

J. Kondring: International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

 

S. Arnold: Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

 

A. Staudinger/F. Scharnetzki: The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita.

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

 

C. Mayer: Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

 

S. Deuring: The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

 

C. Benicke/N. Suchocki: Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

 

R. Hüßtege: German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

 

P. Schlosser: Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

 

B. Heiderhoff: Refugees and the Hague Child Abduction Convention:

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

 

T. Frantzen: Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.

Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.

The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

 

C. Jessel-Holst: Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

Our editor Mayela Celis has on 21 October 2022 defended her PhD thesis “El Convenio de La Haya de 1980 sobre los aspectos civiles de la sustracción internacional de menores: cuatro décadas de interpretación evolutiva – Una selección y análisis de los aspectos clave del Convenio de La Haya a la luz de la jurisprudencia de los Estados contratantes” in Madrid (UNED).

Congratulations!

The case of the Pax Moot Court Peter Nygh round 2023 is out.

The Pax case involves an oil sale, with concerns about the quality of the oil. It concerns various aspects of civil and commercial law as well as insolvency.

The oral rounds of the competition will take place in Antwerp on 3 to 5 May 2023. The full schedule and further information are available on www.paxmoot.eu.

Priskila Pratita Penasthika has recently published her PhD thesis with Eleven titled Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study

The abstract reads as follows:

Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.

Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.

This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.

About the author:

Priskila Pratita Penasthika is an Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia. She graduated with a doctorate in law from Erasmus University Rotterdam.

China’s Foreign Exchange Regulations and Illegality in Private International Law 

About this event

When: Wednesday, 23rd November 4pm

Where: Room 3.1, Third Floor, Centre for Commercial Law Studies, 67-69 Lincoln’s Inn Fields London WC2A

Format: In-person

This event is jointly hosted by QM Criminal Justice Centre and the Centre for Financial Law, Regulation & Compliance (FinReg) at the Institute of Advanced Legal Studies.

Abstract

China is one of the countries in the world enforcing the tightest foreign exchange regulations. However, it is controversial whether a commercial contract that is performed partly in China and partly in a commonwealth country would be unenforceable merely because it violates China’s foreign exchange regulations. Based on Australian and English jurisprudence, this talk will explore the intersection between China’s foreign exchange regulations and illegality in private international law. It discusses:

1. Disguised foreign exchange trading, underground banking, and fund splitting;

2. Under-invoicing in trade in goods to evade import tax and over-invoicing in trade in service to claim income tax refund in an importing country; and

3. Illegality in private international law.

Speaker Bio

Dr. Jie (Jeanne) Huang is an Associate Professor at the University of Sydney Law School in Australia. Her prize-winning research focuses on conflict of laws (private international law), especially comparative studies between the USA, the EU, Australia, and China.

She is the Co-chair of the American Society of International Law Private International Law Interest Group. She also serves as an Australian government expert on mission to the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT). She is on the executive committee of the International Law Association (ILA) Australia branch, and she serves as an editor for the Asian Journal of Law and Society. At the University of Sydney, she is the inaugural director for the LLM program and the co-director of the Centre for Asian and Pacific Law. Beyond the academic, Jeanne is an Arbitrator at the Hong Kong International Arbitration Centre and Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre).

To reserve your spot, please see here.